The opinion
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 19 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERNEST H. BAKER III, No. 19-35930
Plaintiff-Appellant, D.C. No. 2:17-cv-00272-MK
v.
MEMORANDUM*
OREGON DEPARTMENT OF
CORRECTIONS; STUART YOUNG,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Mustafa T. Kasubhai, Magistrate Judge, Presiding
Submitted November 17, 2020**
San Francisco, California
Before: O’SCANNLAIN, TROTT, and N.R. SMITH, Circuit Judges.
Baker appeals from the district court’s grant of summary judgment in favor
of the Oregon Department of Corrections and Stuart Young on Baker’s First
Amendment claim, brough pursuant to 42 U.S.C. § 1983, and his Religious Land
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Use and Institutionalized Persons Act claim. Because the facts are known to the
parties, we repeat them only as necessary to explain our decision.
I
The district court did not err in granting summary judgment on Baker’s
claims relating to the denial of his request for Passover meals.
A
The district court correctly concluded that Young is entitled to qualified
immunity on Baker’s First Amendment claim for monetary damages. Baker did
not have a clearly established right to receive special Passover meals under the
specific circumstances known to Young. The record supports the Magistrate
Judge’s finding that Young’s decision was based on Baker’s previous
identification as a Messianic, his documented attendance at Messianic religious
services, and his history of purchasing non-kosher foods from the prison’s canteen.
Under these circumstances, Young reasonably believed that providing Baker with a
modified kosher meal for Passover, as recommended by Messianic religious
experts, was compatible with his “Nazarene Israelite” religion and did not violate
his First Amendment rights. See Mullenix v. Luna, 577 U.S. 7, 11–12 (2015) (per
curiam).
B
The district court correctly concluded that Baker’s claim for prospective
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relief is moot. Young’s reversal of his decision during the litigation means that
Baker will receive the special Passover meals that he requested. Accordingly, he
has obtained the relief that he sued to obtain, and there is no evidence that the
prison will deny him Passover meals in the future. See Friends of the Earth, Inc. v.
Laidlaw Envl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000).
II
The district court did not err in granting summary judgment on Baker’s
claim relating to his request for a kippa. The only evidence presented to the
district court was that Baker had ordered a kippa that was made available for
purchase, but never received it. These facts do not support an inference of
wrongful conduct by the prison. To the extent Baker now argues that the prison
denied his request for a “Bucharian” kippa, he did not provide any evidence
regarding this issue before the district court and he cannot do so for the first time
on appeal. See Lowry v. Barnhart, 329 F.3d 1019, 1024 (9th Cir. 2003).
III
The district court properly granted summary judgment on Baker’s claim
relating to the prison’s kosher food and drink offerings. Baker did not allege that
any of the shortcomings in the prison’s kosher diet program caused him to violate
his religious beliefs. See Shakur v. Schriro, 514 F.3d 878, 885 (9th Cir. 2008).
AFFIRMED.
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